A photograph meant to celebrate the Tricolour instead landed a 54-year-old Lakshadweep man in a criminal case after the flag appeared with the saffron band facing downward. The Kerala High Court has now quashed the proceedings, holding that an accidental or mistaken display of the flag, without an intention to insult it, would not attract the offence under the Prevention of Insults to National Honour Act, 1971.
“Non-intentional, accidental or mistaken acts of doing the same, without any intention or mens rea to insult the Indian National Flag and the Constitution of India, would not attract the offence. In the instant case, from the prosecution materials discussed, this Court is of the view that the accused never intended to display the Indian National Flag with the saffron colour down and it was a mistake from his side while displaying the same,” the court said on September 26.
The case began on August 14, 2022, when Kavaratti Police registered an FIR suo motu after receiving information through a WhatsApp group called “M G College”. A person named Ameen had forwarded a photograph showing Kasim holding the Indian National Flag with the saffron band facing downward. Police later recorded statements of eight witnesses and filed a final report alleging an offence under the national honour law.
Justice A Badharudeen, who heard the plea, found that the prosecution material did not establish any intention to display the national flag with the saffron colour down. (Image enhanced using AI)
Photograph led to prosecution
Kasim told the high court that he and his wife took the photograph at their Kozhikode residence during the “Har Ghar Tiranga” programme to honour the national flag. His counsel said it was later shared in a private WhatsApp group of Bharatiya Janata Party members from Lakshadweep and that the saffron band appeared at the bottom accidentally, not deliberately.
Kasim argued that a private WhatsApp group was neither a public place nor a place within public view. The Lakshadweep administration opposed the plea, saying the group’s private nature did not take the alleged act outside the Act and that the required intention could be inferred from the allegation of insult.
The law covers acts showing disrespect to the Indian National Flag or Constitution in a public place or another place within public view, punishable with up to three years’ imprisonment, fine, or both. The high court noted that it specifically treats intentionally displaying the flag with the “saffron down” as disrespect.
Story continues below this ad
The court held that a private WhatsApp group could still qualify as a place within public view if public access or viewing was possible. It therefore rejected the argument that the group’s private nature alone took the alleged act outside the Act.
No deliberate insult
Going through the FIR, final report and witness statements, the high court found that, although the prosecution alleged Kasim had insulted the flag by showing the saffron colour downward, it had not alleged that he did so intentionally. The court said an intentional display with the saffron down could attract the offence if supported by the prosecution material, but found no such intention in Kasim’s case.
It also noted that the photograph was displayed as part of the “Har Ghar Tiranga” programme, intended to honour the national flag. It distinguished a deliberate act of insult from an accidental mistake. “Intentionally displaying the Indian National Flag with the saffron colour down with a view to insult the Indian National Flag and the Constitution of India is an offence punishable under Section 2 of the Act, 1971,” it said.
At the same time, the court held that non-intentional, accidental or mistaken conduct, without the intention or mens rea to insult the flag or Constitution, would not attract the offence.
Proceedings quashed after four years
Story continues below this ad
After examining the prosecution material, Justice Badharudeen concluded that Kasim had never intended to display the Indian National Flag with the saffron colour down and that the positioning was a mistake while displaying it.
The court therefore held that the alleged offence could not be found prima facie and exercised its power under Section 482 of the Code of Criminal Procedure to quash the prosecution. The high court consequently allowed Kasim’s petition and quashed all further proceedings arising from the August 14, 2022 FIR registered by Kavaratti Police, as well as the criminal proceedings pending before the Judicial First Class Magistrate Court at Androth.
Justice A Badharudeen, who heard the plea, found that the prosecution material did not establish any intention to display the national flag with the saffron colour down. (Image enhanced using AI)